In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

Nos. 17-3508 & 18-2199 

MARK RICHARDSON, 

Plaintiff-Appellant, 

v.

CHICAGO TRANSIT AUTHORITY, 

Defendant-Appellee.

____________________ 

Appeals from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 16-cv-03027 — John Robert Blakey, Judge. 

____________________ 

ARGUED MAY 14, 2019 — DECIDED JUNE 12, 2019 

____________________ 

Before FLAUM, KANNE, and SCUDDER, Circuit Judges. 

FLAUM, Circuit Judge. Mark Richardson, a former Chicago 

Transit Authority (“CTA”) bus operator, alleged CTA took adverse action against him because of his extreme obesity in violation of the Americans with Disabilities Act of 1990 

(“ADA”), 42 U.S.C. §§ 12101–12213, as amended by the ADA 

Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 

122 Stat. 3553. The district court disagreed. It held extreme 

obesity only qualifies as a disability under the ADA if it is 
2 Nos. 17-3508 & 18-2199

caused by an underlying physiological disorder or condition, 

and granted CTA’s motion for summary judgment because 

Richardson offered no such evidence. Richardson appeals this 

holding, as well as the district court’s decision to tax costs 

against him. We affirm. 

I. Background 

Mark Richardson began working for CTA in 1993 as a temporary bus operator, and he worked as a full-time operator 

from August 1999 until February 2012. According to a CTA 

doctor, Richardson weighed 350 pounds in January 2005. And 

another CTA doctor indicated Richardson weighed 566 

pounds in May 2009. Based on his Body Mass Index (a standardized weight-to-height ratio used to determine whether an 

individual is underweight, within the normal weight range, 

overweight, or obese) Richardson has “extreme” obesity 

whenever he weighs over 315 pounds. He also suffers from 

hypertension and sleep apnea. 

Beginning in early February 2010, Richardson was absent 

from work because he had the flu. He attempted to return to 

work on February 19, but Advanced Occupational Medicine 

Services (“AOMS”)—CTA’s third-party medical provider—

documented that Richardson had uncontrolled hypertension 

and influenza, weighed over 400 pounds, and could not return to work until he controlled his blood pressure. For that 

reason, on April 9, CTA’s Disability Review Committee transferred Richardson to Temporary Medical Disability–Area 605 

(“Area 605”). CTA administrative procedures define Area 605 

as a “budgetary assignment for eligible union employees who 

have been found medically unfit to perform the essential 

functions of their job classification due to an illness or injury.” 
Nos. 17-3508 & 18-2199 3

On September 13, 2010, AOMS examined Richardson’s fitness to return to work. It found Richardson “physically fit to 

work as a bus operator,” but indicated Richardson “must be 

cleared by safety prior to operating [a] bus.” CTA requires 

AOMS to report if a bus operator returning from extended 

leave weighs over 400 pounds because CTA bus seats are not 

designed to accommodate drivers weighing over 400 pounds. 

Weighing over this maximum does not, however, automatically disqualify employees from working as bus operators. 

CTA permits such employees to operate buses if the safety department finds they can safely perform their job. To make this 

determination, CTA administers a “special assessment,” a 

driving performance test used to determine whether bus operators can perform all standard operating procedures on six 

types of CTA buses. 

On September 16, 2010, Richardson completed a special 

assessment. CTA’s Acting Manager of Bus Instruction, Marie 

Stewart, assigned Bus Instructors John Durnell and Elon 

McElroy to administer the test. During the assessment, Durnell and McElroy joked about Richardson’s weight. Durnell 

testified he was just trying “to lighten up the situation,” and 

asserted that in response, Richardson “started laughing and 

he started to relax.” Nevertheless, McElroy reported Durnell’s 

comments to Stewart, and Stewart reprimanded Durnell for 

unprofessionalism. 

Following the assessment, Durnell and McElroy each completed a report. While Durnell concluded Richardson “can 

drive all of CTA’s buses in a safe and trusted manner,” both 

instructors noted several safety concerns: Richardson crosspedaled, meaning his foot was on the gas and brake at the 

same time; Richardson was unable to make hand-over-hand 
4 Nos. 17-3508 & 18-2199

turns; Richardson’s leg rested close to the door handle; Richardson could not see the floor of the bus from his seat; part of 

Richardson’s body hung off the driver’s seat; and the seat deflated when Richardson sat. Additionally, both instructors 

noted Richardson wore a seatbelt extender, wrote that Richardson was “sweating heavily” and needed to lean onto the 

bus for balance, and Durnell commented on a “hygiene problem.” At his deposition, McElroy testified that as a “former 

heart patient,” he was worried Richardson’s “sweating 

[could] lead to an episode.” 

Stewart drafted a memorandum to CTA’s Vice President 

of Bus Operations, Earl Swopes, concluding that “[b]ased on 

the Bus Instructors[’] observations and findings, the limited 

space in the driver’s area and the manufacturer requirements, 

it would be unsafe for Bus Operator Richardson to operate 

any CTA bus at this time.” She specifically referenced the 

safety concerns listed above. Moreover, Stewart wrote that 

“[t]he maximum allowable weight per the manufacturer requirements for CTA buses is 400 pounds,” and “[i]t has been 

represented that Operator Richardson is over that weight 

maximum.” Because Richardson failed the assessment and 

could not adhere to all CTA operating procedures, Swopes 

determined that Richardson could not safely operate CTA 

buses. Swopes testified he based this decision solely on Stewart’s memorandum, without any independent investigation. 

Instead of immediately terminating Richardson’s employment, CTA proposed a written agreement: CTA would transfer Richardson back to Area 605 so he could work with doctors to lose weight and be subject to periodic monitoring; in 

exchange, Richardson would release his ability to bring various causes of action. Richardson refused. In March 2011, CTA 
Nos. 17-3508 & 18-2199 5

nonetheless transferred Richardson to Area 605; the accompanying form provides as a rationale that Richardson “exceeded 

the weight requirement to operate the bus.” In October 2011, 

CTA informed Richardson that he was approaching two years 

of inactive status, and per CTA policy, he could extend his 

time in Area 605 by one year by submitting medical documentation. Richardson did not submit documentation, and in February 2012, CTA terminated his employment. 

On December 15, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued Richardson a right-tosue letter, and on March 10, 2016, Richardson brought the operative complaint against CTA, alleging it violated the ADA 

by “refus[ing] to allow [him] to return to work because it regarded him as being too obese to work as a bus operator.” On 

October 17, 2016, the district court denied CTA’s motion to 

dismiss, ruling that “[e]ven if [Richardson] is ultimately required to prove that his obesity was caused by a physiological 

disorder, he is not required to allege the same.” On April 20, 

2017, Richardson and CTA filed cross-motions for summary 

judgment, and on November 13, 2017, the district court denied Richardson’s motion and granted CTA’s motion. It held, 

based on the language of the ADA and the pertinent EEOC 

regulation and interpretive guidance, that “to qualify as a protected physical impairment, claimants under the ADA must 

show that their severe obesity is caused by an underlying 

physiological disorder or condition.” Because Richardson 

presented no such evidence, the district court entered judgment in CTA’s favor. 

On December 7, 2017, CTA filed its bill of costs, seeking to 

recover $7,333.56 in deposition and copying costs as the prevailing party pursuant to Federal Rule of Civil Procedure 
6 Nos. 17-3508 & 18-2199

54(d)(1). Richardson argued costs should not be taxed because 

of his inability to pay, or alternatively, CTA’s costs should be 

reduced because transcript delivery fees are not recoverable 

and the transcript costs CTA sought were over the rate allowed by local rules. On May 1, 2018, the district court issued 

a minute order taxing $2,067.26 in costs. It denied copying 

costs because the documents were available on the electronic 

docket, and it reduced deposition transcript costs. 

Richardson separately appealed the district court’s grant 

of CTA’s motion for summary judgment and decision to tax 

costs. We consolidated the appeals for resolution. 

II. Discussion 

A. The ADA and Obesity 

We review cross-motions for summary judgment de novo, 

“construing all facts and drawing all reasonable inferences in 

favor of the party against whom the motion under consideration was filed.” Hess v. Bd. of Trs. of S. Ill. Univ., 839 F.3d 668, 

673 (7th Cir. 2016). Here, we consider only CTA’s motion for 

summary judgment, so we draw all facts in favor of Richardson. Summary judgment is proper “where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Id. (citing Fed. R. Civ. P. 56(a)). 

The ADA prohibits employers from “discriminat[ing] 

against a qualified individual on the basis of disability.” 

42 U.S.C. § 12112(a). To succeed on an ADA claim, an employee must show: “(1) he is disabled; (2) he is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) the adverse job action 

was caused by his disability.” Roberts v. City of Chicago, 817 

F.3d 561, 565 (7th Cir. 2016). 
Nos. 17-3508 & 18-2199 7

The ADA defines disability as: “(A) a physical or mental 

impairment that substantially limits one or more major life activities of [an] individual; (B) a record of such an impairment; 

or (C) being regarded as having such an impairment.” 

42 U.S.C. § 12102(1). Richardson focuses his claim on the “regarded as” prong. To succeed, he must establish he was subject to a prohibited employment action “because of an actual 

or perceived physical or mental impairment whether or not 

the impairment limits or is perceived to limit a major life activity.” Id. § 12102(3)(A). At issue here, then, is whether Richardson can demonstrate either: (1) his extreme obesity is an 

actual impairment; or (2) CTA perceived his extreme obesity 

to be an impairment. 

1. Actual Impairment 

Congress has not defined “impairment.” In a regulation 

implementing the ADA, however, the EEOC defined “physical impairment” as: “Any physiological disorder or condition, 

cosmetic disfigurement, or anatomical loss affecting one or 

more body systems, such as neurological, musculoskeletal, 

special sense organs, respiratory (including speech organs), 

cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.” 29 

C.F.R. § 1630.2(h)(1). EEOC regulations interpreting the ADA 

are entitled to deference under Chevron, U.S.A., Inc. v. Natural 

Resources Defense Council, Inc., unless they are “arbitrary, capricious, or manifestly contrary to the statute.” 467 U.S. 837, 

844 (1984); see Sutton v. United Air Lines, Inc., 130 F.3d 893, 899 

n.3 (10th Cir. 1997). 

Richardson and CTA disagree about whether his extreme 

obesity—even without evidence of an underlying physiological condition—meets the definition of physical impairment 
8 Nos. 17-3508 & 18-2199

and is thus an actionable disability for ADA purposes. This is 

an issue of first impression for this Circuit. However, three of 

our sister circuits have considered the question; each has held, 

based on the language of 29 C.F.R. § 1630.2(h)(1), that obesity 

is an ADA impairment only if it is the result of an underlying 

“physiological disorder or condition.” See Morriss v. BNSF Ry. 

Co., 817 F.3d 1104, 1108–13 (8th Cir.), cert. denied, 137 S. Ct. 256 

(2016); EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436, 441–43 

(6th Cir. 2006); Francis v. City of Meriden, 129 F.3d 281, 286–87 

(2d Cir. 1997).1 The majority of district courts have also expressed this view.2 In contrast, only a small number of district 

courts have held extreme obesity is an ADA impairment even 

without evidence of a physiological cause. See, e.g., Velez v. 

Cloghan Concepts, LLC, No. 18-cv-1901, 2019 WL 2423145, at *4 

(S.D. Cal. June 10, 2019); Velez v. II Fornanio (Am.) Corp., No. 

18-cv-1840, 2018 WL 6446169, at *2–4 (S.D. Cal. Dec. 10, 2018); 

McCollum v. Livingston, No. 14-cv-3253, 2017 WL 608665, at 

 

1 The Ninth Circuit has acknowledged that “the scope of ADA protection for individuals suffering from obesity ... presents an open question 

of federal law in this circuit,” but it has not had to resolve the issue. Taylor 

v. Burlington N. R.R. Holdings, Inc., 904 F.3d 846, 851–53 (9th Cir. 2018). 

2 See, e.g., Sturgill v. Norfolk S. Ry. Co., No. 18-cv-566, 2019 WL 1063374, 

at *3–4 (E.D. Va. Mar. 6, 2019); Shell v. Burlington N. Santa Fe Ry. Co., No. 

15-cv-11040, 2018 WL 1156249, at *3 (N.D. Ill. Mar. 5, 2018); Brownwood v. 

Wells Trucking, LLC, No. 16-cv-01264, 2017 WL 9289453, at *6 (D. Colo. 

Nov. 9, 2017); Silva v. Bd. of Cty. Comm’rs for the Cty. of Roosevelt, No. 15-cv1046, 2017 WL 4325769, at *7–8 (D.N.M. Sept. 26, 2017); Valtierra v. Medtronic Inc., 232 F. Supp. 3d 1117, 1123–25 (D. Ariz. 2017); Revolinski v. 

Amtrak, No. 08-cv-1098, 2011 WL 2037015, at *11 (E.D. Wis. May 24, 2011); 

Hayes v. Wal-Mart Stores, Inc., 781 F. Supp. 2d 1080, 1091 (D. Or. 2011); Ni 

v. Rite Aid of N.J., No. 10-cv-1522, 2010 WL 2557523, at *3 (D.N.J. June 22, 

2010); Hill v. Verizon Md., Inc., No. 07-cv-3123, 2009 WL 2060088, at *6 (D. 

Md. July 13, 2009). 
Nos. 17-3508 & 18-2199 9

*35 (S.D. Tex. Feb. 3, 2017); EEOC v. Res. for Human Dev., Inc., 

827 F. Supp. 2d 688, 693–95 (E.D. La. 2011); Lowe v. Am. Eurocopter, LLC, No. 10-cv-24, 2010 WL 5232523, at *7–8 (N.D. 

Miss. Dec. 16, 2010).3 We join the Second, Sixth, and Eighth 

Circuits. Without evidence that Richardson’s extreme obesity 

was caused by a physiological disorder or condition, his obesity is not a physical impairment under the plain language of 

the EEOC regulation. 

In his arguments to the contrary, Richardson focuses first 

on the ADAAA. Congress passed these amendments in 2008 

to ensure that the ADA’s “definition of disability ... be construed in favor of broad coverage.” 42 U.S.C. § 12102(4)(A). 

Congress emphasized “that the primary object of attention in 

cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations,” 

while “the question of whether an individual’s impairment is 

a disability under the ADA should not demand extensive 

analysis.” ADAAA § 2(b)(5), 122 Stat. at 3554. 

Specifically, Congress sought to broaden the scope of the 

“being regarded as having such an impairment” definition of 

disability. Id. § 2(b)(3); see Miller v. Ill. Dep’t of Transp., 643 F.3d 

190, 196 (7th Cir. 2011) (“[T]he ‘regarded as’ prong is an important protection that should not be nullified by creating an 

impossibly high standard of proof, as Congress indicated 

even more strongly in the 2008 amendments.”). It rejected the 

Supreme Court’s decision in Sutton v. United Air Lines, Inc., 

 3 The Montana Supreme Court reached a similar conclusion, discussing the ADA when interpreting the analogous Montana law. BNSF Ry. Co. 

v. Feit, 281 P.3d 225, 230–31 (Mont. 2012). 
10 Nos. 17-3508 & 18-2199

527 U.S. 471 (1999), which held that to be regarded as disabled, an employee’s disability must substantially limit a major 

life activity. See id. at 490 (“An employer runs afoul of the 

ADA when it makes an employment decision based on a 

physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity.”). Therefore, Congress amended the ADA to make clear an individual 

can be “regarded as” having an impairment “whether or not 

the impairment limits or is perceived to limit a major life activity,” 42 U.S.C. § 12102(3)(A), and the EEOC adopted regulations to the same effect. See 29 C.F.R. § 1630.2(j)(2) 

(“Whether an individual’s impairment ‘substantially limits’ a 

major life activity is not relevant to coverage under ... the ‘regarded as’ prong.”); id. § 1630.2(l)(1). 

Additionally, Congress relaxed court-imposed rules as to 

how severe an impairment must be to be considered a disability. It sought to abrogate the Supreme Court’s decisions in 

Sutton and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), because the Court’s definition of 

“substantially limits a major life activity” in those cases “created an inappropriately high level of limitation necessary to 

obtain coverage under the ADA” by requiring that employees 

have an impairment that “severely restrict[ed]” a major life 

activity. ADAAA § 2(b)(2)–(5), 122 Stat. at 3554.4 It found that 

 4 See Toyota, 534 U.S. at 197–98 (holding “substantially” and “major” 

“need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and therefore, to be disabled “an individual must have 

an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives”); 

Sutton, 527 U.S. at 482–83 (“A person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently ‘substantially limits’ a major life activity.”). 
Nos. 17-3508 & 18-2199 11

EEOC regulations “defining the term ‘substantially limits’ as 

‘significantly restricted’ [were] inconsistent with congressional intent[] by expressing too high a standard,” and expressed its “expectation” that the EEOC would revise its regulations. Id. § 2(a)(8), (b)(6). The EEOC adhered to this directive. See 29 C.F.R. § 1630.2(j)(1)(ii) (“An impairment need 

not prevent, or significantly or severely restrict, the individual 

from performing a major life activity in order to be considered 

substantially limiting.”); id. § 1630.2(i)(2) (“[T]he term ‘major’ 

shall not be interpreted strictly to create a demanding standard for disability.”). 

Richardson contends that after the ADAAA, courts must 

broadly construe impairment to encompass extreme obesity, 

even without evidence of an underlying physiological condition. Cf. EEOC v. BNSF Ry. Co., 902 F.3d 916, 923 (9th Cir. 2018) 

(“impairment” should be interpreted “broadly” after the 

ADAAA). We disagree. While Congress criticized the Supreme Court’s understanding of “substantially limits a major 

life activity” at length, it said nothing about judicial interpretation of impairment. See Morriss, 817 F.3d at 1111. Likewise, 

while Congress instructed the EEOC to alter its definitions of 

“substantially limits” and “major life activity,” it made no 

such instruction with respect to the EEOC’s definition of impairment. See id. Indeed, the ADAAA’s legislative history explicitly states that Congress “expect[ed] that the currently regulatory definition of [physical or mental impairment], as 

promulgated by agencies such as the [EEOC] ... [would] not 

change.” Statement of the Managers to Accompany S. 3406, 

The Americans with Disabilities Act Amendments Act of 

2008, 154 Cong. Rec. S8342-01, S8345 (Sept. 11, 2008). The 

EEOC therefore did not modify its regulation defining im-
12 Nos. 17-3508 & 18-2199

pairment, and even after the ADAAA, the definition of physical impairment remains inextricably tied to a “physiological 

disorder or condition.” 29 C.F.R. § 1630.2(h)(1); see Morriss, 

817 F.3d at 1111 (“The ADAAA’s general policy statement 

cannot trump this plain language.”). 

Next, Richardson insists that we must interpret the 

EEOC’s definition of physical impairment in light of EEOC 

interpretive guidance. That guidance, which interprets both 

the ADA and the EEOC regulation, states: 

It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. 

The definition of the term “impairment” does 

not include physical characteristics such as eye 

color, hair color, left-handedness, or height, 

weight, or muscle tone that are within “normal” 

range and are not the result of a physiological 

disorder. 

29 C.F.R. pt. 1630, app. § 1630.2(h). While EEOC interpretive 

guidance is “not entitled to full Chevron deference,” it does 

“reflect a body of experience and informed judgment to which 

courts and litigants may properly resort for guidance” and is 

therefore “entitled to a measure of respect under the less deferential Skidmore [v. Swift & Co., 323 U.S. 134 (1944)] standard.” Fed. Express Corp. v. Holowecki, 552 U.S. 389, 399 (2008) 

(citations and internal quotation marks omitted); see Gile v. 

United Airlines, Inc., 95 F.3d 492, 497 (7th Cir. 1996). 

According to Richardson, this EEOC guidance specifies 

that “impairment does not include the physical characteristic 
Nos. 17-3508 & 18-2199 13

of weight if both of the following elements are present: (1) the 

weight [is] within the normal range; and (2) the weight is not

the result of a physiological disorder.” The Montana Supreme 

Court adopted this interpretation. BNSF Ry. Co. v. Feit, 281 

P.3d 225, 229 (Mont. 2012). So did at least three district courts. 

See Velez, 2019 WL 2423145, at *4; Velez, 2018 WL 6446169, at 

*4; Res. for Human Dev., 827 F. Supp. 2d at 694. Removing the 

negatives, Richardson posits that “[i]mpairment does include 

the physical characteristic of weight if either of the following 

elements are true: (1) the weight is not within the normal 

range; or (2) the weight is the result of a physiological disorder.” 

Like the Eighth Circuit, we do not find this reading of the 

interpretive guidance persuasive. Rather, “a more natural 

reading of the interpretive guidance is that an individual’s 

weight is generally a physical characteristic that qualifies as a 

physical impairment only if it falls outside the normal range 

and it occurs as the result of a physiological disorder.” Morriss,

817 F.3d at 1108. As the Eighth Circuit reasoned, “reading ... 

the EEOC interpretive guidance in its entirety supports this 

conclusion” because, for example, “the interpretive guidance 

also provides that ‘[o]ther conditions, such as pregnancy, that 

are not the result of a physiological disorder are also not impairments.’” Id. at 1108–09 (alteration in original) (quoting 

29 C.F.R. pt. 1630, app. § 1630.2(h)). 

Moreover, Richardson’s preferred interpretation is overbroad. If we were to read the EEOC interpretive guidance in 

the way he suggests, even an employee with normal weight 

could claim a weight-based physical impairment if his weight 

was the result of a physiological disorder. Likewise, any employee whose weight—or other physical characteristic—is 
14 Nos. 17-3508 & 18-2199

even slightly outside the “normal range” would have a physical impairment even with no underlying physiological cause. 

Such results are inconsistent with the ADA’s text and purpose 

and must be rejected. Otherwise, “the ‘regarded as’ prong ... 

would become a catch-all cause of action for discrimination 

based on appearance, size, and any number of other things far 

removed from the reasons the [ADA] [was] passed.” Watkins, 

463 F.3d at 443 (quoting Francis, 129 F.3d at 287). 

In any event, even if this interpretive guidance means 

what Richardson says it means, we do not defer to EEOC 

guidance that is contrary to the text of the regulation it purports to interpret. See Christopher v. SmithKline Beecham Corp., 

567 U.S. 142, 155 (2012) (“Deference is undoubtedly inappropriate ... when the agency’s interpretation is ‘plainly erroneous or inconsistent with the regulation.’” (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997))). The EEOC defines physical impairment as a “physiological disorder or condition.” 29 C.F.R. 

§ 1630.2(h)(1). It is directly contrary to that definition to consider a physical characteristic such as weight, even if outside 

the “normal range,” a physical impairment absent evidence 

of an underlying physiological condition.5

 5 Richardson also emphasizes the EEOC has consistently expressed its 

view that extreme obesity is a physical impairment. In a compliance manual, the EEOC stated that while “[b]eing overweight, in and of itself, generally is not an impairment ..., severe obesity, which has been defined as 

body weight more than 100% over the norm, is clearly an impairment.” 

EEOC Compliance Manual § 902.2(c)(5)(ii) (2012) (citations and footnotes 

omitted). The EEOC has also taken this position in litigation, both as plaintiff and amicus. True, courts may generally defer to both EEOC policy 

statements in a compliance manual and EEOC’s interpretation of its own 

regulation in legal briefs. Christopher, 567 U.S. at 155; Holowecki, 552 U.S. at 

399; see Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 663 (7th Cir. 
Nos. 17-3508 & 18-2199 15

Patient and scientific professional organizations, as amici 

curiae, make a somewhat related, but distinct argument. They 

insist that because both the medical community6 and federal 

and state policymakers7 understand obesity as a disease, obesity is in and of itself a physiological disorder and therefore a 

 

2015) (Flaum, J., concurring in part and concurring in the judgment) (“[I]t 

is generally appropriate to defer to an agency’s interpretation of its own 

regulations, even when that interpretation is informally announced.”). 

Here, however, neither the compliance manual nor EEOC’s litigation position are entitled to our deference. For one, the EEOC removed this paragraph from its compliance manual in 2012. See EEOC, Section 902 Definition of the Term Disability (2012), https://www.eeoc.gov/policy/docs/902cm.html. And more importantly, the EEOC’s position is in direct conflict with the regulation because it considers extreme obesity a 

physical impairment even without evidence of an underlying physiological disorder or condition. See Morriss, 817 F.3d at 1111 n.4, 1112. 

6 For example, the American Medical Association describes “obesity 

as a disease state with multiple pathophysiological aspects requiring a 

range of interventions to advance obesity treatment and prevention.” Am. 

Med. Assoc. House of Delegates, Recognition of Obesity as a Disease (2013), 

https://www.npr.org/documents/2013/jun/ama-resolution-obesity.pdf. 

Likewise, the World Health Organization concluded “obesity should be 

considered a disease in its own right.” World Health Org., Obesity and 

Overweight (2003), http://www.who.int/dietphysicalactivity/media/en/gsfs_obesity.pdf. And the National Institutes of Health said “[o]besity is a complex, multifactorial chronic disease.” Nat’l Insts. of Health, 

Clinical Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity in Adults, at xi (1998), 

https://www.nhlbi.nih.gov/files/docs/guidelines/ob_gdlns.pdf. 

7 For instance, the Internal Revenue Service decided an individual 

could deduct costs of a weight-loss program as a medical care expense 

because he had “a disease, obesity,” I.R.S. Rev. Rul. 2002-19, 2002 WL 

484628 (Apr. 2, 2002), and the Social Security Administration recognized 

obesity as “a complex, chronic disease characterized by excessive accumu-
16 Nos. 17-3508 & 18-2199

physical impairment within the definition of the ADA. This 

argument is not persuasive. The ADA is an antidiscrimination—not a public health—statute, and Congress’s desires as 

it relates to the ADA do not necessarily align with those of the 

medical community. Moreover, amici’s argument proves too 

much; if we agreed that obesity is itself a physiological disorder, then all obesity would be an ADA impairment. While 

Richardson does not ask us to hold that all obese individuals—found to be as high as 39.8% of the American adult population8—automatically have an ADA impairment, adopting 

amici’s position leads to this unavoidable, nonrealistic result. 

At bottom, Richardson does not present any evidence suggesting an underlying physiological disorder or condition 

caused his extreme obesity.9 Without such evidence, we cannot call Richardson’s extreme obesity a physical impairment 

 

lation of body fat.” SSR 00-3p, 2000 WL 33952015 (May 15, 2000). Additionally, in 2017, the Senate passed by unanimous consent a resolution in 

support of “National Obesity Care Week,” recognizing “the disease of 

obesity,” S. Res. 325, 115th Cong. (2017), and in 2018, the National Lieutenant Governors Association passed a resolution which called obesity “a 

chronic disease.” Nat’l Lieutenant Governors Ass’n, Resolution in Support 

of the Treatment and Prevention of Obesity (June 29, 2018), 

https://www.nlga.us/wp-content/uploads/2018-Resolution-in-Supportof-the-Prevention-and-Treatment-of-Obesity-2.pdf. 

8 See U.S. Dep’t of Health & Human Servs., Prevalence of Obesity Among 

Adults and Youth: United States, 2015–2016 (Oct. 2017), 

https://www.cdc.gov/nchs/data/databriefs/db288.pdf. 

9 True, Richardson’s pulmonologist submitted a declaration stating 

Richardson’s hypertension and sleep apnea were “related to” his obesity. 

However, there is nothing in the record suggesting Richardson’s hypertension or sleep apnea caused his obesity. 
Nos. 17-3508 & 18-2199 17

within the meaning of the ADA and the EEOC regulation. See 

Morriss, 817 F.3d at 1112; Watkins, 463 F.3d at 443.10

2. Perceived Impairment 

Alternatively, Richardson argues that even if we hold extreme obesity is not itself an impairment, he is still disabled 

under the ADA because CTA perceived his obesity to be a 

physical impairment. See 42 U.S.C. § 12102(3)(A). To succeed 

on this claim, Richardson must show CTA took adverse action 

against him based on the belief that his condition was an impairment—as the ADA defines that term—not merely based 

on knowledge of Richardson’s physical characteristic. See 

Morriss, 817 F.3d at 1113 (“[A]s a threshold matter, [the employee] was required to show that [the employer] perceived 

his obesity to be a condition that met the definition of ‘physical impairment.’”); Francis, 129 F.3d at 285 (“[T]he plaintiff

must allege that the employer believed, however erroneously, 

 

10 Richardson also suggests the fact that he “suffered from extreme 

obesity ... alone is sufficient ... to establish that he meets the definition of 

‘disability’ under the ADA.” Cf. Watkins, 463 F.3d at 443–45 & n.1 (Gibbons, J., concurring) (opining that “[i]t is possible that morbid obesity is a 

disorder that by its very nature has a physiological cause,” but agreeing 

summary judgment was proper because the plaintiff put forth no evidence 

to that effect); Cook v. State of R.I., Dep’t of Mental Health, Retardation, & 

Hosps., 10 F.3d 17, 23 (1st Cir. 1993) (concluding a jury could find that 

plaintiff’s “morbid obesity” was a “physical impairment” because “she 

presented expert testimony that morbid obesity is a physiological disorder 

involving a dysfunction of both the metabolic system and the neurological 

appetite-suppressing signal system, capable of causing adverse effects 

within the musculoskeletal, respiratory, and cardiovascular system”). We 

need not decide whether, on a particular evidentiary showing, extreme 

obesity alone can be considered a physiological condition because Richardson presented no such evidence. 
18 Nos. 17-3508 & 18-2199

that the plaintiff suffered from an ‘impairment’ that, if it truly 

existed, would be covered under the [ADA] ....”). In other 

words, Richardson must present sufficient evidence to permit 

a reasonable jury to infer that CTA perceived his extreme obesity was caused by an underlying physiological disorder or 

condition. 

Richardson did not make this showing. To be sure, Richardson introduced evidence that CTA took adverse action 

against him based on his excessive weight. For example, CTA 

transferred Richardson to Area 605 because he exceeded the 

weight specifications for CTA buses. Additionally, CTA required Richardson to take a special assessment because he 

weighed over 400 pounds, not because of any violation of 

CTA standard operating procedures. And in Stewart’s memorandum to Swopes summarizing the results of the special assessment, she highlighted safety concerns directly related to 

Richardson’s weight: he could not perform hand-over-hand 

turning, he cross-pedaled, he had difficulty getting in and out 

of the driver’s seat, his body hung off the seat, his leg was 

close to the door handle, and he exceeded the 400-pound maximum per CTA bus manufacturer requirements. But there is 

no evidence Stewart, Swopes, or anyone else at CTA believed 

Richardson’s excessive weight was caused by a physiological 

disorder or condition. To the contrary, the evidence suggests 

CTA perceived Richardson’s weight as a physical characteristic that made it unsafe for him to drive. These facts do not permit a finding that CTA regarded Richardson as disabled for 

purposes of ADA liability. See Francis, 129 F.3d at 287 (no liability where plaintiff “alleges only that [defendant] regarded 

him as disabled because it disciplined him for failing to meet 

a weight standard applied to all of its employees,” and not 
Nos. 17-3508 & 18-2199 19

“because it perceived him as suffering from a physiological 

weight-related disorder”). 

Richardson cites to the First Circuit’s opinion in Cook v. 

State of Rhode Island, Department of Mental Health, Retardation, 

& Hospitals, 10 F.3d 17 (1st Cir. 1993), and suggests that the 

court held a jury could find an employer perceived an employee’s extreme obesity as a physical impairment merely because the employer “stated concerns about the plaintiff’s ability to perform her job duties.” Richardson reads Cook too 

broadly. In Cook, the court affirmed a jury verdict in favor of 

the plaintiff under the identical “perceived disability” provision of the Rehabilitation Act. Id. at 23. The court explained 

that a jury could have found the defendant treated the plaintiff “as if she had a physical impairment” because the evidence “show[ed] conclusively that [the defendant] treated 

plaintiff’s obesity as if it actually affected her musculoskeletal 

and cardiovascular systems.” Id. Critically, the court emphasized that the plaintiff presented “expert testimony that morbid obesity is a physiological disorder.” Id. Here, by contrast, 

Richardson presented no such evidence. The district court 

thus properly held that CTA could not have perceived Richardson as having a physical impairment within the ADA’s 

definition. 

B. Costs 

“Unless a federal statute, [the Federal Rules of Civil Procedure], or a court order provides otherwise, costs—other 

than attorney’s fees—should be allowed to the prevailing 

party.” Fed. R. Civ. P. 54(d)(1). “There is a presumption that 

the prevailing party will recover costs, and the losing party 

bears the burden of an affirmative showing that taxed costs 

are not appropriate.” Beamon v. Marshall & Ilsley Tr. Co., 411 
20 Nos. 17-3508 & 18-2199

F.3d 854, 864 (7th Cir. 2005). This presumption “is difficult to 

overcome” and therefore, “the district court’s discretion is 

narrowly confined—the court must award costs unless it 

states good reasons for denying them.” Weeks v. Samsung 

Heavy Indus. Co., 126 F.3d 926, 945 (7th Cir. 1997). We reverse 

a district court’s decision to award costs only after “a showing 

of clear abuse of discretion.” Id.

We have held that “it is ‘within the discretion of the district 

court to consider a plaintiff’s indigency’” when taxing costs 

against him. Rivera v. City of Chicago, 469 F.3d 631, 634 (7th Cir. 

2006) (quoting Badillo v. Cent. Steel & Wire Co., 717 F.2d 1160, 

1165 (7th Cir. 1983)). To deny costs based on indigency, the 

court must first “make a threshold factual finding that the losing party is ‘incapable of paying the court-imposed costs at 

this time or in the future.’” Id. at 635 (quoting McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir. 1994)). “The burden is on the 

losing party to provide the district court with sufficient documentation to support such a finding.” Id. (internal quotation 

marks and citation omitted). 

Richardson argues the district court abused its discretion 

because it “completely failed to consider or address [his] arguments and the evidence he submitted demonstrating his inability to pay the costs awarded at this time or in the future.” 

We disagree. To be sure, “district judges [must] provide at 

least a modicum of explanation when entering an award of 

costs.” Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 454 (7th 

Cir. 1998). Here however, the court provided an explanation. 

It made clear that CTA was entitled to costs as the prevailing 

party, and it provided an accounting of how it calculated costs 

at $2,067.26 (significantly less than CTA’s initial $7,333.56 request). True, the district court did not mention Richardson’s 
Nos. 17-3508 & 18-2199 21

claim that he was indigent, but the indigence exception “is a 

narrow one” and “is not a blanket excuse for paying costs.” 

Rivera, 469 F.3d at 635–36. While we have held that a district 

court abuses its discretion when it denies costs without explanation on the basis of indigence, see id. at 636–37, Richardson 

does not cite any case holding a district court abuses its discretion when it grants costs, with an explanation, but does not 

explicitly consider the plaintiff’s indigence. It was thus not 

unreasonable for the district court to tax $2,067.26 in costs. 

III. Conclusion 

For the foregoing reasons, we AFFIRM the judgment of the 

district court.